Grogan v. Spaulding , 1913 Tex. App. LEXIS 915 ( 1913 )

SPEER, J.

P. T. Grogan, Jr., sues John Spaulding and 'Will Spaulding, composing the firm of Spaulding Bros., to recover a sum of money paid to the defendants for a certain automobile; the petition alleging that at the time of said payment the plaintiff was a minor, ‘and that on reaching his majority he had promptly elected to rescind the purchase.

The defendants answered generally, and specially by a plea of res adjudicata. A trial before the court resulted in a judgment for the defendants, and the plaintiff has appealed.

[1] A single assignment is presented, raising the sole question that the court erred in rendering judgment for the appellees upon the undisputed evidence to the effect that at the time appellant paid the consideration for the automobile he was a minor, and that on arriving at his majority he had elected to rescind the contract of purchase, tendering the machine back to the appellees; and, further, that at the time appellant was sued by appellees for the purchase money of the automobile he was yet a minor. It is also shown that in the suit by appellees against appellant no guardian ad litem was appointed by the court, but an appeal was taken by the minor, and the judgment against him was affirmed by this court, which judgment has never in any manner been vacated or set aside. Appellant invokes the familiar rule that a minor, upon reaching his majority, may elect to rescind his contract, made during his minority, and recover back the consideration paid. He insists that he is in no worse position by reason of the demand against him having been reduced to judgment during his minority than if he had paid the same voluntarily; that in either instance he could recover the money paid. But we cannot agree to this contention. Infants are permitted to sue and be sued, and are as much bound by the judgment or decree as if they were adults. Cannon v. Hemphill, 7 Tex. 184; 27 Cen. Dig. tit. Infants, § 821.

[2] Article 1942, Revised Statutes 1911, makes it the duty of the court, in case an infant defendant has no regular guardian, to appoint a guardian ad litem to defend for him, and the failure of the court to make such appointment is an error for which the judgment rendered against such minor will be reversed; but it has never been held that the judgment is for that reason void. Taylor v. Rowland, 26 Tex. 293; Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567.

[3] In the case last cited our Supreme Court holds that a minor sued as an adult and not defended by a guardian ad litem might properly sue to set aside such judgment, and to have a new trial awarded him; but until such course has been pursued, or the judgment against him in some manner annulled, the minor is as much bound by the adverse decree as any other litigant, and cannot, upon reaching his majority, disaffirm the judgment as he would a contract. In short, the judgment imports verity and implies a finding against the plea of minority, or that the contract was for necessaries, or otherwise that all proper defenses arising out of the minority of the defendant have been decided adversely to him. If such issues are -improperly decided, the minor’s remedy is by appeal or other direct attack, and not by collateral attack, as is attempted in this instance.

There is no error in the judgment, and it is affirmed.